Advance Directive Basics

I'm getting older. What documents should I have in place?

If you are getting older or if you have dependants, there are three documents you should prepare to help your loved ones manage your affairs.

Health Care Directive: Your Health Care Directive (also called Living Will or Personal Directive or Advance Decision) is used to appoint someone to make health care and personal care decisions for you (of a non-financial nature) and describes any medical treatment preferences you may have in the event you are no longer able to communicate or are incapable of giving consent.

Power of Attorney: Your Power of Attorney grants authority over your financial decision making to someone you trust in case you become unable to communicate or incapable of giving consent. A Power of Attorney may also be used to grant full or limited powers over your financial affairs when you will be travelling or otherwise unavailable.

Last Will: Your Last Will describes how to distribute your estate after you die.

What is an advance directive?

Advance directives are sometimes referred to as advance decisions, advance statements or living wills.

Usually, an advance directive contains specific directions on the course of action you would or would not like to take if you are in a terminal condition, a permanent coma or in a persistent vegetative state. It may provide instructions on whether or not you wish to receive artificial life support, artificially administered food and water or comfort and care.
Usually, an advance decision contains specific directions on the course of action you would or would not like to take if you are in a terminal condition, a permanent coma or in a persistent vegetative state. It may provide instructions on whether or not you wish to receive artificial life support, artificially administered food and water or comfort and care.

What is the difference between a Last Will and a Health Care Directive?

A Last Will is used to distribute your property after your death. A Health Care Directive allows you to specify, in writing, your health care preferences for the time when you no longer have capacity to provide consent. A Last Will cannot be used to specify what type of medical treatment you want.

Why do I require an advance directive?

Should you suffer from an accident or illness, you may not be able to communicate the type of treatment you wish to receive. In such circumstances, your health care provider and your family will be obliged to guess what your health care wishes are. However, if you have signed an advance directive, your health care wishes will be clear and no guess work will be required.

Do I need a solicitor to create an advance directive?

Do I need an advance directive if I already have a last will and testament?

Yes. Advance directives and last wills are very different. Your last will and testament deals with the distribution of property after your death. In contrast, an advance directive deals with your health and personal care and applies when you are alive and cannot communicate your wishes.

What is the difference between a lasting power of attorney (LPA) for personal welfare and an advance directive? (in England and Wales)

An LPA for personal welfare is a document that allows you to appoint someone to make decisions regarding your health care and personal care when you lack the capacity to make such decisions yourself. In contrast, you typically don’t appoint anybody in an advance directive. Advance directives are simply used to specify the type of health care you wish to receive when you lack the capacity to do it yourself.

What effect does a Personal Welfare LPA have on my advance directive? (in England and Wales)

LPAs may have the effect of invalidating your pre-existing advance directive. If you create an LPA which grants your attorney the power to give or refuse consent to the same kind of treatment to which your advance directive relates, then your advance directive will no longer be valid. If you intend to create a Personal Welfare LPA, it may be best to specify in the LPA that you wish your attorney to follow your advance directive.

Will my advance directive be legally binding?

Once properly signed and witnessed, your advance directive will be legally binding on family, friends and health care personnel (to the extent your directions are consistent with accepted health care practices). However, health care practitioners are not required to ask whether you have signed a directive or search for a directive. Make sure that your family, friends and health care representative know that you have signed a health care directive and let them know where it can be found.
Note: In Scotland, advance directives may not be legally enforceable, however, under the general principles of the Adults With Incapacity Act, the wishes and feelings of an individual should be considered before any action is taken on their behalf.

Will my health care provider be obliged to follow the instructions in my advance directive?

Generally, health care providers must follow your health care instructions (to the extent your directions are consistent with accepted health care practices). However, if a health care provider is unwilling to follow your directions, the provider is usually obliged to refer you to another health care provider who will honour your instructions.

How long will an advance directive last?

An advance directive will last until the time of your death unless you have revoked it sooner.

Terminology

What is a "health care provider"?

A health care provider is any person who is licensed, certified or otherwise legally authorised to administer health care in the ordinary course of business or practice of a profession.

What is "terminal condition"?

Terminal condition means a condition caused by injury, disease or illness from which there is no reasonable medical probability of recovery and which, without treatment, can be expected to cause death.

What is "persistently unconcious"?

Persistently unconcious means a profound state of unconsciousness caused by disease, injury, poison or other means and for which it has been determined that there exists no reasonable expectation of regaining consciousness.

What is "severely and permanently mentally impaired"?

Severely and permanently mentally impaired means being in a permanent and irreversible state of mental impairment in which there is:

The absence of voluntary action or cognitive behaviour and

An inability to communicate or interact purposefully with the environment.

What is “life support”?

Life support means any medical procedure, treatment or intervention which sustains, restores or supplants a spontaneous vital function. In this document the term does not include tube feeding or the provision of medication or the performance of a medical procedure when such medication or procedure is deemed necessary to provide comfort care or to alleviate pain.

What is "tube feeding"?

Tube feeding means the provision of nutrients or fluids by a tube inserted in a vein, under the skin in the subcutaneous tissues, or in the stomach (gastrointestinal tract).

What is "comfort care"?

Modification and Revocation

Can I change or alter my advance directive?

If you wish to alter the directions in your advance directive you should destroy all copies of the directive and create a brand new directive. Remember that your directive should always reflect your current wishes. Also, ensure that you provide a copy of your new directive to your health care representative, your physician or anyone else who had received the old directive.

Can I revoke my advance directive?

If you wish to revoke your advance directive, the best way to do so is by destroying all copies of the directive and notifying your health care provider of your decision. You may also revoke your directive by informing your attending physician or health care provider that you wish to revoke your directive.

Do I require a new advance directive if I move to another jurisdiction?

Each jurisdiction has its own laws, forms and procedures related to advance directives. Most jurisdictions will honour the advance directive of another jurisdiction however it is best to consult with the legislation specific to your jurisdiction to ensure that your advance directive will be recognised.

Miscellaneous

Does an advance directive allow "mercy killing" or euthanasia?

Signing Details

What should I do with my advance directive once it has been properly signed and witnessed?

You should discuss your advance directive with your health care representative, your family and your family physician. Additionally, you should provide these parties a copy of your directive.

Are there any other witnessing formalities?

Your witness must watch you sign, or be present when you acknowledge your signature.

Who Can witness my Advance Directive?

A witness should be at least 18 years of age, should not be a spouse or partner, should not be entitled to any portion of your estate, and should not be your health care provider, an employee of your health care provider or an employee of a nursing home or care facility in which you are a resident.